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Let's End Criminalization Without Representation

Let's End Criminalization Without Representation

Determining what is and what isn’t a crime should be part of the political process.

In his recent article in the Harvard Law Review, “The President’s Role in Advancing Criminal Justice Reform,” President Obama touts his administration’s successes while blaming Republican leadership for the failure to pass comprehensive criminal-justice reform, one of his administration’s last-year priorities. In the president’s words, the GOP leadership simply has “not yet allowed [reform bills] to come to the floor for a vote.”

The president’s interest in criminal-justice reform is laudable, but his assignment of blame is disingenuous: The lack of legislative progress owes to his unwillingness to compromise and the White House’s own outspoken opposition to Republican priorities. Specifically, the administration and left-leaning allies have opposed any federal efforts to address over-criminalization, or the rapid growth of criminal rules and regulations that punish conduct that is not intuitively wrong, often without regard for the actor’s intent.

One of the core drivers of over-criminalization is that 98 percent of the more than 300,000 crimes on America’s books were never voted on by Congress. We at the Manhattan Institute have dubbed this phenomenon “criminalization without representation.” In our view, it represents one of the most egregious usurpations of power by the state from the people in American history.

According to a count done in 2007, “only” 4,450 federal criminal statutes were on the books. The vast majority of criminally enforceable rules are set out in the Code of Federal Regulations. The CFR’s provisions are the products of decisions made by unelected, politically unaccountable bureaucrats. Contrary to what we were told by “Schoolhouse Rock,” very few criminal laws are debated and passed by Congress and signed by the president. Fewer than 2 percent of criminally enforceable federal rules come from our elected representatives.

This trend is not limited to the criminal law. According to the Competitive Enterprise Institute, for every law Congress passes, federal agencies create 18 rules.

Though this practice has been normalized over the past few decades with the growth of the modern regulatory state, it is a sharp departure from our nation’s philosophical roots. Elected representatives — and, by extension, those they represent — have not had a meaningful say in whether conduct should be criminalized. The Declaration of Independence specifically states that the government’s just powers are derived “from the consent of the governed.”

By taking crime creation almost entirely out of the political process, the government has stripped the governed of the opportunity to consent to, or not, the thousands upon thousands of outmoded, obscure, and often overreaching rules that litter the Federal Register — and threaten the unsuspecting citizen with criminal prosecution. The isolation of criminal lawmaking from the political process has also stripped citizens of the ability to hold anyone accountable for the creation of a given criminal offense.

Some might argue that we haven’t really been denied representation insofar as we can vote out the representatives who engage in the sort of delegation that created the labyrinth of crimes that now exists. Leave aside that we never formally agreed to depart from the traditional political process in the first place; the offspring of delegation outlives the delegators. To undo the consequences, congressional replacements would have to work through a process that their ousted predecessors weren’t required to work through in creating the problem they were elected to fix. That hardly seems efficient or fair.

While the president in his law-review article does identify problems worthy of serious congressional debate, the absence of any reference to the over-criminalization problem is discouraging, and that omission explains the failure of the Obama administration to enact meaningful criminal-justice reform. In light of President-elect Trump’s stated intent to reduce the regulatory burden faced by Americans, his administration ought to give serious consideration to supporting criminal-justice reform legislation that, in addition to addressing issues such as sentencing guidelines and intent requirements, would require Congress to act before a regulation can be criminally enforced. Doing so would put the power to criminalize back in the hands of the people’s representatives, where it has always belonged.